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Subject:
From:
"Martin D. Zehr" <[log in to unmask]>
Reply To:
Mark Twain Forum <[log in to unmask]>
Date:
Mon, 8 Jun 2009 17:25:32 +0000
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"Public" images, generally, would not, in my opinion, be considered part of
an estate, in the sense that they can be controlled, e.g., licensed by an
estate, except where the estate, or the legal representative of the
individual while living (in vitro) has obtained legal protection for
specific written/published or visual "images" per se.  On the other hand, of
course, any one can sue to "protect" an image, manufactured or otherwise,
even if these
 are "frivolous" suits, meant to intimidate, through the threat of expensive
litigation, and deter any perceived alterations and/or critical commentary
regarding cherished images.  Satire, however, is another story, generally
regarded as protected speech, especially for "public" figures.  The example
that comes to my mind in this regard is the suit against Larry Flynt year s
ago for, among other things, his portrayal of a Supreme Court justice
engaged in out-of-the-mainstream sex acts.  I don't recall at which level of
the Federal court system the Flynt case was finally decided, but Flynt did
win an unequivocal victory, based on the First Amendment's attributed
protection of satire of public figures.  Flynt, of course, had the tenacity
and wherewithal to fight to the end in his case.  Most such cases are likely
settled informally or by non-public settlement.  An instance of the latter
occurred a few years ago when Harley-Davidson threatened legal action
against Suzuki for manufacturing a motorcycle which imitated the "po-ta-to,
po-ta-to" exhaust rhythm of Harleys, caused by an offset crankpin used since
the 1930s.  Harley argued that they were protecting their image, although
the exhaust sound had never been patented and had been associated with other
bikes prior to Harley-Davidson.  Whether due to HD's perceived political and
financial power or the desire to avoid an expensive and unproductive spat,
Harley kept it's rhythm and Suzuki is doing as well as ever, especially in
the present economic downturn.

This is a long-winded way of saying that a major factor in these "image"
protection cases, where explicit patents or copyrights are not applicable,
is  the financial wherewithal and obstinacy of the defendants whose creative
efforts have posed a perceived threat to a cultivated image.

Martin Zehr
Kansas City, Missouri

P.S.-  This opinion should not, in any event, be construed or interpreted as
legal advice applicable to any cause of action, current, pending, or in
contemplation, and is definitely worth the price paid by its readers.

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